First Circuit Court of Appeals Restores Sanity To Kosilek Case

Readers of this blog know that I’ve blogged previously on the twisted subject of Robert Kosilek, and his multi-year legal battles with the Commonwealth of Massachusetts, more specifically with the Massachusetts Department of Corrections. Kosilek, of course, is the (now famous, due to his legal battles) psychotic murderer, who killed his wife in 1990, then dumped her body in a trash dumpster. At trial, he was found guilty of murder in the first degree and sentenced to life in prison without the possibility of parole.

However, all that time to think about things, brought a ‘revelation’ to this esteemed guest of the Commonwealth: To wit, that he wasn’t Robert Kosilek, he was really a woman – Michelle Kosilek. And he wanted something “done” about that. And he wanted the taxpayers to pay for that something – specifically, ‘sex reassignment surgery’ otherwise known as a sex change operation – to turn Robert into Michelle. The Massachusetts DOC summarily rejected this request, at which point Kosilek sued the DOC – and, stunningly, won in lower court decisions. In 2012, much of the case seemed closed in Kosilek’s favor as U.S. District Court of Massachusetts judge Mark Wolf ruled in Kosilek’s favor in 2012 – ordering the Commonwealth of Massachusetts (read: its taxpayers,) to provide and pay for a sex change operation for Kosilek. What was judge Wolf’s legal reasoning? That to deprive this insane murderer a sex change operation, would constitute “cruel and unusual punishment,” in violation of the Eighth Amendment to the U.S. Constitution.

As a Boston, Massachusetts criminal defense attorney, I was shocked at that contorted vacancy of legal reasoning. The Eighth Amendment’s ban on cruel & unusual punishment was meant to ban twisted and medieval methods of punishment and torture such as beheadings, burning people at the stake, drawing & quartering prisoners, floggings, and similar. That a federal judge could equate the state’s refusal to provide a psychotic, convicted murderer’s demand for a sex change operation, with “cruel and unusual punishment,” is, in plain English, downright scary.

Undeterred, the state appealed the decision to the U.S. First Circuit Court of Appeals, and this past January (2014,) the insanity continued when a three-judge panel of the Appeals Court upheld Wolf’s decision. What this showed was not only that appeals to the court had lost, but that so had appeals to sanity. Common sense seemed lost in liberal judicial rulings. But valiantly and admirably, the state then asked for a full bench review, with all five judges that sit on the court hearing the case (this is legally known as an “en banc” review.)

Thankfully, both sound legal reasoning and sanity finally prevailed which led to Tuesday’s reversal. Importantly, the full court noted that Wolf had inappropriately substituted his own judgment for doctors involved in the case, who did not unanimously agree that the surgery is the only acceptable solution for the Kosilek’s ‘condition,’ and his resulting ‘depression.’ Further, the court noted that Wolf “circumvent[ed] the deference that is owed to prison administrators” under federal laws when addressing the issue of the safety of prison inmates.

I also practice in courts outside of Boston, and as a Norfolk County criminal defense lawyer, I hope that this judicial restoration of sanity to legal reasoning, will provide hope for those who have lost hope in our judicial system. Because it is laughable, legally unsupportable decisions like judge Wolf’s, which cause many people to wonder what has happened to the courts and the judicial system in this country.

But Kosilek and his liberal supporters probably won’t stop, even now. Because there’s one more appellate avenue: The U.S. Supreme Court – and you can be sure this case will be appealed to that Last Legal Word. If the court were to agree to hear the case, in my professional opinion all legal bets would be off: That court is packed with liberals, like Sonia Sotomayor and Elena Kagan.

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